Katrina, federalism, and military law enforcement: a new exception to the Posse Comitatus Act.

• Author: McGrane, Sean

In the days following Hurricane Katrina, as lawlessness and violence spread throughout New Orleans, the White House considered invoking the Insurrection Act so that members of the U.S. military could legally perform law enforcement functions inside the flooded city. This Note contends that the White House's decision not to invoke the Act was substantially driven by federalism concerns--in particular, concerns about intruding on Louisiana's sovereignty. But, this Note further contends, in focusing so heavily on these state sovereignty concerns, the White House largely ignored the other side of the "federalism coin"--namely, enabling the federal government to act where national action is desirable. To address future situations where the president may desire to deploy troops domestically for law enforcement functions but may be hesitant to do so for fear of intruding on a state's sovereignty, this Note urges Congress to create a procedural mechanism whereby the president may go to a specially-created judicial body and seek a "warrant" to deploy members of the military for domestic law enforcement. This procedural mechanism would not be entirely new--indeed, the Second Congress of the United States imposed a similar "judicial certification" requirement on the president's ability to deploy the military domestically for law enforcement functions. The procedure suggested here, however, would supplement and not replace the president's current Insurrection Act powers.

TABLE OF CONTENTS I. HURRICANE KATRINA AND MILITARY LAW ENFORCEMENT A. Katrina: Landfall and a City in "Anarchy" B. Debate Over the Military's Role C. The Federalism Concerns Behind the PCA, the Insurrection Act, and the Stafford Act 1. The Posse Comitatus Act 2. The Insurrection Act 3. The Stafford Act II. THE FEDERALISM CHECK ON THE PRESIDENT'S INSURRECTION ACT POWERS A. Katrina and Federalism Concerns B. Congress Strengthens the Federalism Check III. A NEW STATUTORY EXCEPTION TO THE PCA A. The Structural and Operational Contours of the PCA Court B. The PCA Court and Federalism Concerns C. A Historical Justification for the Proposed PCA Court D. The Warrant as Political Cover CONCLUSION INTRODUCTION

The Posse Comitatus Act ("PCA") bars members of the U.S. military from enforcing domestic laws. (1) The PCA prevents members of the military from performing those law enforcement tasks that are traditionally handled by police and other domestic law enforcement officials--tasks like conducting investigations into alleged criminal activity and arresting suspected criminals. For example, if an Army captain witnesses a person within the United States commit a robbery, the captain may not arrest that person, even if the captain is standing inches away from the perpetrator as the crime occurs. (2)

The language of the PCA specifically authorizes Congress to create exceptions to the Act as it sees fit. (3) The most notable exception to the PCA is the Insurrection Act, (4) which authorizes the president, when certain conditions have been met, to deploy the military inside the United States to perform traditional law enforcement functions. When the Insurrection Act has been invoked, the PCA's restrictions are lifted and members of the military, under the command of the president, are free to arrest U.S. citizens for violations of state and federal law. Thus, when the president has invoked the Insurrection Act, the hypothetical Army captain may legally arrest the hypothetical robber.

The PCA is rooted in federalism. (5) Federalism, in the words of the U.S. Supreme Court, is the constitutional principle under which "the [n]ational [g]overnment, anxious though it may be to vindicate and protect federal rights and federal interests, always endeavors to do so in ways that will not unduly interfere with the legitimate activities of the [s]tates." (6) Federalism is concerned with striking the appropriate balance between, on the one hand, respecting state sovereignty and state authority; and, on the other, "enabling the federal government to act where national action is desirable." (7) In the American system, this balance between state and federal power has traditionally been struck through the political process. (8) James Madison envisioned a system in which the state and federal governments kept each other in check by competing for the affections of the people through the political process. Today, concepts of federalism "shape government, law and politics." (10) Indeed, the Court has noted that "[f]ederalism serves to assign political responsibility, not to obscure it." (11) Thus, while the precise nature and scope of American federalism remains subject to great debate, the term is used throughout this Note to refer broadly to the set of legal and political considerations that underlie the allocation of power between the federal government and the sovereign states.

The PCA and the Insurrection Act implicate opposite sides of the federalism coin: the PCA is concerned with preserving state authority, while the Insurrection Act is concerned with promoting federal power. Law enforcement is principally the province of the states, and when the U.S. military intrudes on this province, the authority of the states is compromised. The PCA prevents this intrusion and "preserves federalism by making state and local governments responsible for most law enforcement." (12) The Insurrection Act, as an exception to the PCA, recognizes that in certain circumstances the national interest is best promoted by the federal military performing law enforcement functions within the states.

Despite serving opposite sides of the federalism coin, the PCA and the Insurrection Act have coexisted in relative harmony for more than a century. The Insurrection Act carves out a narrow exception to the PCA, invoked only where an insurrection has arisen within a state, and where the local and state law enforcement agents are incapable of quelling the insurrection. (13) The Insurrection Act authorizes the president to deploy troops for domestic law enforcement either when the state government requests such assistance or when the president makes an independent determination that the military is required to enforce federal law. In the latter instance, the president may deploy troops regardless of whether the state desires such assistance; indeed, he may deploy troops even when the state government expressly opposes such a move. In this instance, the federalism concerns are highest. But since the Civil War, the Insurrection Act has been invoked almost exclusively upon request by state governments. In the post-Civil War era, the president has deployed troops absent a state government's request for only one purpose--to integrate southern schools in the 1950s and 1960s. (14) Because the Insurrection Act remains a narrow exception to the PCA, and because the Act is rarely invoked without a state government's request, the limits of the Insurrection Act and the PCA have gone mostly untested for more than a century.

That all changed in late August 2005, when Hurricane Katrina ("Katrina")--the third most powerful hurricane to strike the United States in recorded history (15)--made landfall on the Gulf Coast. (16) While the eye of the hurricane made landfall some seventy miles east of New Orleans, (17) it was in that city, in the hours and days after Katrina struck, that the limits of the Insurrection Act and the PCA were tested. The inability of local and state officials to stop rampant looting in and around New Orleans created a security vacuum that some believe should have been filled by members of the U.S. military. (18) Had Louisiana Governor Kathleen Blanco requested federal assistance under the Insurrection Act, or had President Bush invoked the Act unilaterally, the military could have filled this security vacuum. But for a variety of reasons neither official took such action, and as a result the PCA prevented military personnel already in Louisiana for rescue and relief efforts from performing law enforcement functions.

This Note argues that federalism concerns substantially motivated President Bush's decision not to invoke the Insurrection Act after Katrina. It further argues that the PCA and the Insurrection Act should be changed to give the president greater flexibility to deploy troops to perform law enforcement functions when faced with similar federalism constraints in future catastrophes. Part I details the role the Insurrection Act and the Posse Comitatus Act played in the state and federal response to Katrina. Part I further discusses the federalism concerns that underlie the Insurrection Act, the PCA, and the Stafford Act--the Act that governs the federal disaster and emergency relief system. Part II argues that the Bush Administration's decision not to invoke the Insurrection Act was substantially driven by federalism--in particular, concerns about intruding on Louisiana's authority without the state's consent. Part II then contends that Congress strengthened the "federalism check" (19) on the president's Insurrection Act powers in the years after Katrina, and that by strengthening this federalism check, Congress ignored important federal interests that underlie the Insurrection Act. Part HI borrows an idea from the founding generation and suggests that Congress create a new statutory exception to the PCA, whereby the president may go to a judicial body to seek authority--a sort of warrant--to deploy military personnel domestically to enforce the laws. This exception would supplement and not replace the president's existing Insurrection Act powers. Part HI defines the contours of this new judicial body and offers several justifications for its creation.

1. HURRICANE KATRINA AND MILITARY LAW ENFORCEMENT

   As federal and state officials worked to respond to the devastation Katrina wreaked on the Gulf Coast, one key question that led to protracted debate and confusion centered on what role, if...